Criminal Precedures Flashcards
Pre trial procedures
Gather evidence, determine the offender, preserve rights and to determine whether to proceed to trial
Bail
Situation in which a person charged with a criminal offense is released from custody into society of court hearing or trial. It is to uphold the presumption of innocence, As the accused has not yet been found guilty of the offense, it’s hard out of custody is to prepare their case.
Conditions of bail and granting bail
Surrendering their passport, regular attendance at a police station or a surety.
Granted by the magistrate at a bail hearing, police officer, bail justice.
Bell is refused when
The accused is charged with murder, treason or serious drug matters.
Likely to reoffend
Likely to harm themselves or others
Remand
Refers to when the accused person is refused bail so that they are held in custody until the trial, where the guilt or innocent will be determined. It is to protect society by retaining accused in custody if it is believed likely to reoffend, harm others or tamper with evidence
Committal hearing
Refers to an additional pre-trial procedures people go through if charged with an indictable offense that is not heard summarily. Held in the Magistrates Court, Determines whether a prima facie case exists (whether there is sufficient prosecution evidence to support a conviction by jury in a higher court)
Determines if there is sufficient weight support the conviction
Avoids wasting time and money
Committal Process
- charge sheet
- special mention hearing and a committal mention hearing.
- charge sheet read out
- hand-up brief method; written statements
- witnesses may be questioned
- mag determine whether sufficient prosecution evidence
- enters a plea. guilty; sentencing in a higher court. not guilty; accused may decide to present their defense at committal hearing.
- if decided evidence is sufficient evidence may proceed to county or supreme
- evidence collected
Criminal Trial
occurs when charged with an serious indictable offence, determined by court. parties can represent themselves or have legal representation. prosecution conducted by solicitor and barrister from the office of the DPP
Post-trial sanctions
Sanction is a legal punishment imposed by courts in criminal cases where the accused has been found guilty or has pleaded guilty to a crime.
Sentencing Act 1991 (Vic.):
• Sets out general provisions dealing with the powers of courts to sentence offenders and aims to promote consistency of approach in sentencing
• Sets guidelines to be followed by the courts when sentencing
Deterrence: To deter the offender from committing offences of the same or a similar character
Denunciation: To show court’s disapproval
Punishment: To punish the offender to an extent and a manner which is just in all of the circumstances
Protection: To protect the community from the offender by removing the offender from society
Rehabilitation: To establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated
sanctions: imprisonment
Imprisonment: records a conviction and orders that the offender serve time in prison, where their liberty and freedom is taken from them.
- court sets max and min term of imprisonment, after min they are able to apply for parole.
sentences for multiple offences are served concurrently unless serious, or occur while or bail/ parole, in that case is is served cumulatively.
• Punishment – Loss of freedom and liberty
• Protection of the community – offender is unable to commit further crimes
• Deterrence –should deter offender and others from offending
• Denunciation – court is sending out a clear disapproval
• Rehabilitation –making them a useful member of society when released
Community Corrections Order (CCO) sanction
with or without a conviction, a court can place an offender under the supervision of a community corrections officer who can direct an offender to perform unpaid community work for a specific number of hours over a max of two year.
• Punishment – CCOs place particular demands on offenders in terms of time, supervision and conditions
• Rehabilitation – through programs provided to assist offender to overcome cause of criminal behaviour
• Protection of society – engages the offender in meaningful community work, decreasing the opportunity for them to reoffend
• Deterrence – offender and others may not wish to be subject to CCO in the future
fine
with or without conviction, a court can order the offender to pay a fine (specified sum of money paid by offender to court). NOTE: fines are expressed as penalty units, courts can allow offenders to pay by installments, or grant time to pay.
• Punishment – through financial loss
• Deterrence – threat of a loss of money may deter people from committing the crime
• Denunciation – court could show disapproval through imposing a large fine
Effective operation of criminal procedure ETFUH
- Bail upholds presumption of innocence
- The Sentencing Act aims to bring about consistency in sentencing offenders, while still allowing judges and magistrates to treat each case on its individual facts
- An accused person may be held on remand, even though they have not been found guilty of a crime
- The deciders of fact (judges, magistrates and the jurors) may be bias
Effective operation of criminal procedure EATLS
- Accused will have case heard by a specialized, expert legal body
- Able to establish grounds for appeal
- Some parties may be unaware of their legal rights
- An accused person may be ineligible for legal aid
Effective operation of criminal procedure TROD
- Committal hearings help to speed up the criminal process
- Directions hearings speed up processes before and during trials
- Committal hearings can add to the delays in getting a case to trial
- Delays in criminal cases can be caused by delays in reporting the crime, long police investigations and difficulty in collecting evidence
